In a recent case, the European Court of Human Rights (ECHR) has provided useful guidance on an employer’s ability to monitor staff activities covertly. The case relates to a Spanish employer but the outcome is relevant to UK law.
Some supermarket employees were dismissed for theft in light of confessions by colleagues and covertly recorded video evidence showing the misconduct. Five of the employees then embarked on a 10-year attempt to have the video evidence rendered inadmissible on the basis that it breached their privacy rights under both Spanish law and the European Convention on Human Rights.
The ECHR confirmed that employers can conduct covert video surveillance without breaching privacy rights, but must be proportionate in balancing the loss of privacy against the necessity of conducting the surveillance covertly. Here the thefts were very substantial – amounting to tens of thousands of euros per month over a period of some months. The employees had been informed that certain surveillance cameras were in place, but not that there were cameras trained on four tills covertly recording employees at those tills throughout their working day.
The factors to be considered in determining proportionality included (i) whether (and how) the employee has been informed (ii) the extent of the monitoring and the degree of intrusion (iii) whether the employer has legitimate reasons to carry out the monitoring (iv) whether less intrusive measures could be used and (v) the consequences to the employee. Here the covert monitoring was proportionate given the gravity of the thefts, the fact that the shop was a public place, the covert surveillance only lasted 10 days and only three people (including the employees’ trade union representative) reviewed the video evidence before the dismissals.
Breaches of data protection rights were not argued in this case, but privacy rights are inherent to UK data protection legislation. Employers should undertake a proper and detailed Data Protection Impact Assessment (DPIA) to carry out a balancing act before undertaking any employee monitoring. Where monitoring is overt, with employees being clearly informed about it, and it is proportionate taking into account the data protection principles and the above points, then it should be permissible. Covert monitoring is more difficult to justify but as in this case may still be proportionate depending on the reason for it.
The fact that this case which looks hopeless and with patently guilty claimants, took 10 years in the courts to resolve should in itself be enough to persuade even the most righteous employers to have a properly considered, reasoned justification, in advance of undertaking any covert monitoring.